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Pooranchand and ors. Vs. Shriram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 27 of 1961
Judge
Reported inAIR1963Raj245
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 3 - Order 34, Rule 5; Limitation Act, 1908 - Schedule - Article 181
AppellantPooranchand and ors.
RespondentShriram and ors.
Appellant Advocate Raj Narain and; S.K. Biswas, Advs.
Respondent Advocate S.K. Jindal and; H.L. Mehra, Advs.
DispositionAppeal dismissed
Cases ReferredNagendra Nath Dey v. Suresh Chandra Dey
Excerpt:
- - , on account of the respondents'failure to file an application within the period of 90 days. on the other hand, it was clearly mentioned that after the expiry of the period allowed to the defendants for payment, the mortgaged property would be sold to satisfy the decretal amount. but in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide. the principle which clearly emerges from the decisions of their lordships in saiyid jowad hussain, air 1926 pc 93 and chandra mani sana, air 1934 pc 134 is that if the period of limitation for filing an application is to run from the date of the basic order or a preliminary decree, then that period would run from the date on which the appeal against the said.....dave, j. 1. this is an appeal by the defendants against the judgment and final decree passed by the learned senior civil judge, ajmer, on 24th october, 1960. 2. it involves two ticklish questions of law and in order to appreciate them properly, it seems necessary to narrate the facts which have given rise to them. 3. all the four appellants are real brothers, being sons of one mst. sardha devi alias sardhamani who is no longer alive. between the years 1936 and 1939 their mother obtained loans from one ramdhan, father of respondents nos. 1 and 2, and executed four mortgage-deeds on different dates. ramdhan brought a suit for recovery of the entire mortgage-money secured by all the said documents, against the present appellants on 14th march, 1946 in the court of sub-judge, ajmer. that suit.....
Judgment:

Dave, J.

1. This is an appeal by the defendants against the judgment and final decree passed by the learned Senior Civil Judge, Ajmer, on 24th October, 1960.

2. It involves two ticklish questions of law and in order to appreciate them properly, it seems necessary to narrate the facts which have given rise to them.

3. All the four appellants are real brothers, being sons of one Mst. Sardha Devi alias Sardhamani who is no longer alive. Between the years 1936 and 1939 their mother obtained loans from one Ramdhan, father of respondents Nos. 1 and 2, and executed four mortgage-deeds on different dates. Ramdhan brought a suit for recovery of the entire mortgage-money secured by all the said documents, against the present appellants on 14th March, 1946 in the Court of Sub-Judge, Ajmer. That suit was at the request of the parties, referred by the Court to the arbitration of two persons, namely, Sri Daya Shankar and Sri Devi Dayal who were respectively counsel for the plaintiff and the defendants in the suit. The arbitrators gave their 'award on 21st December, 1949. The operative portion of the award ran as follows:--

'The plaintiff's claim is decreed for Rs. 5,000/-, principal sum, and Rs. 3,793/- on account of interest up to the date of suit with proportionate costs. Future interest is allowed at 6 per cent per annum only on Rs. 5,000/-. The defendants shall pay the said amount within six months and in case of their default, the mortgage-property shall be sold to satisfy the decretal amount. Usual preliminary decree be framed on these terms.'

4. Against the said award, two separate applications were presented by the defendants under Section 30 of the Arbitration Act, 1940, for getting it set aside. Those applications were dismissed by the Court on 31st December, 1951. On appeal to the Court of Judicial Commissioner, Ajmer, it was held that the procedure adopted by the lower court was irregular and so the case was remanded on 19th November, 1953. The Sub-Judge after recording evidence and hearing the parties again rejected the defendants' objections on 30th December, 1954. The defendants again appealed in the Court of Judicial Commissioner and the order of the Sub-Judge was again set aside and the matter was remanded to his Court on 9th January, 1956. After hearing Hie parties again, the Senior Civil Judge, who was then seized of the case on account of the merger of the State of Ajmer with Rajasthan dismissed the defendants' objections on 10th December, 1956 and passed a decree in favour or the plaintiffs in terms of the award dated 21st December, 1949. Against the order dated 10th December, 1956 refusing to set aside the award, the defendants filed three separate appeals which were heard by a Division Bench of this court and all those appeals were dismissed by one judgment on 3rd July, 1961.

5. During the pendency of the appeals before this Court, the original plaintiff (decree-holder) died on 19th February, 2959. The appellants moved an application under Order 22, Rule 4 of the Code of Civil Procedure for substitution of the present respondents as legal representatives of the deceased plaintiff. That application was allowed and they were substituted as legal representatives of deceased Ramdhan in appeals Nos. 5, 6 and 11 of 1957 of this Court referred above.

6. While the said appeals were pending in this court, an application was moved by Shri Mukand Ram Garg, Advocate, on 2nd January, 1960, in the Court of Senior Civil Judge, Ajmer, for obtaining the final decree under Order 34, Section 5, Civil Procedure Code, and directing the sale of me mortgaged-property. On 22nd August, 1960, the said ADVOCate filed another application under Order 22, Rules 3 and 10, C.P.C., praying that the present respondents be impteaaed as legal representatives of deceased Ramdhan. These applications were dismissed on 31st August, 1960 on the ground that Shri Mukand Ram Garg was not properly appointed as a counsel and, therefore, they were not maintainable. Thereafter, the respondents filed three applications in the Court of Senior Civil Judge on 14th September, 1950. One of them was filed for obtaining the final decree under Order 34, Rule 5. Another one was filed under Order 22, Rule 10 and the third under Sections 5 and 14 of the Indian Limitation Act for condonation of the delay. All these three applications have been disposed of by the learned Senior Civil Judge by his order dated 24th October, 1960 in favour of the respondents and it is against this judgment and decree that the present appeal is directed.

7. The first contention raised by learned counsel for the appellants is that the appeal, which was filed by his clients in this Court, was filed under Section 39 of the Arbitration Act against the order of the Sub Judge, Ajmer, dated 10th December, 1956, refusing to set aside the award, that it was not an appeal from the preliminary decree and therefore the fact that the respondents were impleaded as legal representatives of the deceased plaintiff in the said appeal did not enure to their benefit in the suit which was pending in the Court of Senior Civil Judge. It is contended that the application dated 14th September, 1960 was presented long after the period of 90 days from the date of the plaintiff's demise, that the suit had already abated and no application having been filed for setting aside the abatement within the period of 60 days under Order 22, Rule 9, C.P.C., the said application should have been dismissed.

8. In reply, it is urged by learned counsel for the respondents that a preliminary decree was already passed by the trial Court on 10th December, 1956, that Ramdhan plaintiff died thereafter on 19th February, 1959 and, therefore, the question of abatement of the suit did not arise.

9. It would appear from what is stated above that it is common ground between the parties that the preliminary decree was passed in favour of Ramdhan on 10th December, 1956, that he died on 19th February, 1959, that the present application was presented on 14th September, 1960 and thus it was presented after the lapse of about one and a half year's period since Ramdhan's death. The question, which arises for our determination is whether the suit abated under Order 22, Rule 3, C.P.C., on account of the respondents'failure to file an application within the period of 90 days.

10. Learned counsel for the appellants has referred to Anmolsingh v. Hari Shankar Lal, AIR 1930 All 779 and Mahabirsingh v. Narain Tewari, AIR 1931 AN 490 (FB). In the first case it was held that-

'Under the Civil Procedure Code, the suit did not terminate by the passing of the preliminary decree, but it continued till it was finally and completely disposed of by the passing of the final decree. Consequently, where one out of the several defendants dies after the preliminary decree but before the final decree and his legal representative was not brought on record within the time allowed by law, the suit abated as regards that defendant.'

The same view was upheld by a Full Bench in the next case. It may be pointed out that in Pecumal Pillai v. Perumal Chetty, AIR 1928 Mad 914 a contrary view was held by a Full Bench of the Madras High Court, relying on certain observations of their Lordships of the Privy Council in Lachhmi Narain v. Balmakund, AIR 1924 PC 196 and other cases to the effect that-

'Order 22, Rules 3 and 4 did not apply to oases of death after the passing of preliminary decree.'

This view does not appear to have been changed by that Court, since no decision of that Court to the contrary has been referred to us.

Similarly, in Dawarali Jafarali v. Bat Jadi, AIR 1940 Bom 318, it was held, disagreeing with the view of the Allahabad High Court expressed in the cases referred above, that Order 22, Rules 3 and 4 did not apply where a preliminary decree was already passed. Beaumont C. J. with whom Sen J. agreed, observed as follows:--

'Now, where a preliminary decree has been passed, it seems to me that it is quite inappropriata to talk about the right to sue surviving. The rights of the parties are crystallised by the preliminary decree. The mortgage is established, the mortgagor has a right to redeem, and in default the mortgagee is given certain rights. It is no longer open to the plaintiff to sue in respect of his original cause of action; all he can do is to enforce his rights under the preliminary decree. No doubt an application for a final decree is not technically an application in execution of the preliminary decree, but it is certainly not an application in respect of the original right to sue. It is an application to enforce the rights under the preliminary decree and though the suit may be continued for that purpose, it seems to me inappropriate to refer to the right to sue as either surviving or not surviving.'

It may be observed that these remarks very fittinglyapply to the facts and circumstances of the present case,because plaintiff Ramdhan had filed a suit for the mortgage money by sale of the mortgaged-property and he havingobtained a preliminary decree, it was no longer open tohim to file another suit on the same cause of action. Afterthe preliminary decree was passed in his favour, the rightto sue did not survive and so the language of Order 22, Rule 3,could not apply in terms. We respectfully agree with theview taken by the learned Judges of the Bombay High courtin Dawarali Jafarali Saiyad's case, AIR 1940 Bom 318.It may be pointed out that the same view has been consistently held by the teamed Judges of the Patna High Court inthe following cases:--

Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340, Raghunandan Sahu v. Badri Pandey, AIR 1945 Pat 380.

The same view has been followed by the learned Judges of the Nagpur High Court in Eknath Ramjiwanji v. Hanmantram Raghunath, AIR 1947 Nag 75 and by the Calcutta High Court in Tara Pada Ray v. Shyama Pada Ray, AIR 1952 Cal 579.

In view of the consensus of opinion of the learned Judges of the High Courts of Bombay, Patna Calcutta and Wagpur with which we respectfully agree, we find ourselves unable to follow the view of the Allahabad High Court in Anmolsingh's case, AIR 1930 All 779. It is noteworthy that Order 22, Rule 12 of the Code has been amended by the Allahabad High Court and the effect of the amendment is that Rules 3 and 4 do not apply to proceedings in the original Court taken after the passing of the preliminary decree, where a final decree also requires to be passed having regard to the nature of the suit. Thus although we have not been referred to any case of the Allahabad High Court subsequent to 1931 changing its interpretation of Rules 3 and 4 of Order 22 of the Code, the view prevailing in the High Courts of Madras, Bombay, Patna, Calcutta and Nagpur has been adopted by an amendment of Rule 12. Under the circumstances, we see no force in the contention raised by learned counsel for the appellants.

Moreover, even if it be assumed for the sake of argument that the opinion, which was expressed in Anmolsingh'scase, AIR 1930 All 779 was correct, its advantage wouldnot be available, to the appellants in the present case.Even in that case it was held that the suit did not terminatewith the preliminary decree and that it continued till itwas finally disposed of by a final decree. Now, in thepresent case, it cannot be gainsaid that the order refusingto set aside the award was passed by the trial Court inthe suit because the suit itself was referred by the courtto the arbitration, the award was received in the same suitand so the order which was passed by the Court, was alsopassed in the suit. When an appeal against the order refusing to set aside the award was filed in this Court thesuit did not come to an end but it continued till the appealwas disposed of by this Court on 3rd July, 1961. When thelegal representatives of Ramdhan were Impleaded in theappeal, it cannot be contended with any justification thatthey could not be deemed to have been impieaded in thesuit. Thus from whichever angle the argument of theappellants be judged, there seems no force to be foundtherein.

11. The next contention, which has been more vehemently urged by learned counsel for the appellants is, that the respondents' application for obtaining the final decree was covered by Article 181, Indian Limitation Act, that under the said Article, the prescribed period of three years commenced from the date when the right to apply accrued, that the right to apply for the final decree accrued on 10th December, 1956 immediately after the preliminary decree was passed, that the period of limitation thus expired on 10th December, 1959 and since the present application was filed on 4th September, 1960, it ought to have been dismissed) by the trial Court as being time-barred. It is further contended that the trial Court was wrong in holding that since the defendants had filed an appeal against the order of that Court refusing to set aside the award, the limitation would run from the date of the appellate Court's judgment and the question of limitation did not arise under the circumstances. It has been strenuously argued that although this Court has since decided the appeals on 3rd July, 1961, the period of limitation cannot commence from that date, because those appeals were not filed against the preliminary decree but they were filed under Section 39 of the Arbitration Act against an order refusing to set aside the award. According to learned counsel, the proceeding out of which the said application arose was a separate and collateral proceeding and no fresh right to file an application for final decree could ascrue from the decision of the appellate Court.

12. In reply, it is urged by learned counsel for the respondents that the preliminary decree passed by the Court was in accordance with the award, that although the defendants had challenged the validity of the award in an appeal under Section 39 of the Arbitration Act, it was in essence an appeal against the preliminary decree, because the preliminary decree and the award were identical, that after the decision of this Court on 3rd July 1961 the order of the trial Court refusing to set aside the award merged therein and a fresh right to apply for a final decree accrued thereafter.

13. Another alternative argument given by learned counsel for the respondents is, that the language of the operative portion of the award reproduced above, shows that the arbitrators had themselves given an adjudication that if the amount allowed by them to the plaintiffs was not paid by the defendants within six months, the mortgaged property should be sold to satisfy the decretal amount. The decree passed by the trial Court was also in these very terms and thus it was a composite decree including both the preliminary and final decrees. There was no direction in the preliminary decree that after the period of six months, the plaintiffs were to file an application for obtaining a final decree according to Order 34, Rule 5.

It is pointed out that according to the preliminary decree which is given under Order 34, Rule 4, a direction is given to the decree-holder to apply for a final decree after the period allowed in the preliminary decree for payment expires. No such direction was given in the decree of the trial Court. On the other hand, it was clearly mentioned that after the expiry of the period allowed to the defendants for payment, the mortgaged property would be sold to satisfy the decretal amount. Thus it was net obligatory for the plaintiffs to file an application for the final decree and the situation created was similar to the one which prevailed, at the time when Section 88 of the Transfer of Property Act was not amended by the Code of Civil Procedure. According, to learned counsel, the decree passed by the trial court on 10th December, 1956 was itself executable, but since an ambiguity was created by the arbitrators by saying that usual preliminary decree be framed and the Court had also used the form of a preliminary decree, so, in order to avoid any objection being raised by the judgment-debtors at the time of the execution of the decree, and by way of abundant caution, his clients had applied for a final decree.

14. We have given due consideration to the arguments raised by learned counsel for both the parties, it is common ground between them that there is no separate Article in the Indian Limitation Act for an application for a final decree in mortgage suits under Order 34, Rule 5, C.P.C. and that such an application comes within the ambit of Article 181 which covers all applications for which no period of limitation is provided elsewhere in the First Schedule of the Indian Limitation Act or the Code of Civil Procedure. This Article provides three years' limitation and that period is to be computed from the date when the right to apply accrues. The question for determination is whether in the facts and circumstances of the present case the period of three years should be computed from 10th December, 1956, which is the date of the preliminary decree, or from 3rd July, 1961 when the defendants' appeals under Section 39 of the Arbitration Act were dismissed by this Court.

15. Now, it may be pointed out that in Saiyid Jowad Hussain v. Gendan Singh, AIR 1926 PC 93 the mortgagees had brought a suit for the mortgage-money, a preliminary decree was passed by the trial Court on 22nd February, 1915 and six months of grace for payment given thereby was to expire on 22nd August, 1915. The plaintiffs were not content with the preliminary decree and they filed an appeal. That appeal was dismissed on 21st May, 1917. On 21st February, 1919 the plaintiffs presented an application for a final decree. It was opposed by the defendants on the ground that it was time-barred under Article 181 of the Schedule to the Limitation Act, 1908. Obviously, three years' period had expired from the date which was fixed by the preliminary decree for payment but not from the date of the judgment of the appellate Court. The point, which thus arose before their Lordships of the Privy Council, was whether the period of limitation was to run from the expiry of the time for payment fixed by the original preliminary decree or from the date when on appeal against that decree, the appeal was dismissed. It was held by their lordships, approving the view taken by the learned Judges of the Allahabad High Court in Gajadhar Singh v. Kishan Jiwan Lal, AIR 1917 All 163 (SB) that

'where an appeal was preferred against the preliminary decree, the time for applying for final decree runs from the date of appellate decree'.

We have not been referred to any later decision of their lordships' of the Privy Council or of their lordships of the Supreme Court in which a contrary view might have been expressed in similar circumstances.

16. Learned counsel for the appellants has tried to distinguish this case by saying that the appeals which were decided by this Court on 3rd July, 1961 were not appeals from a preliminary decree. It may be conceded that in the strict technical sense the appeals decided by this court on 3rd July, 1961 were not appeals against the preliminary decree of the trial Court, but, as we shall show presently, those appeals were, in essence and virtually, in fact, nothing more than appeals from the preliminary decree.

17. In order to appreciate this position, it has to be kept in mind that an arbitration award is nothing but a decision or an adjudication of an arbitrator or arbitrators with regard to a certain matter or matters which may be referred to them. According to the scheme of the Arbitration Act, the Court may, under Section 15 thereof, modify or correct such an award in the circumstances appearing therein. It has also got power to remit the award under Section 16 and even to set aside the award. Then, it is provided in Section 17 that if the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced, a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award. It is clear from the language of this section that if no application is filed by any party to set aside the award and if the period prescribed for making such application expires or if an application is actually filed but it is dismissed and the Court refuses to set aside the award, then, it is incumbent upon that Court to pronounce judgment according to the award.

Thus, if the award is not modified under section 15, or it is not remitted under Section 16, and if the application for setting aside the award is dismissed or if no such application has been filed, then after the expiry of the period for the application, the Court has no alternative out to pronounce the judgment according to the award. In other words, if the application for setting aside the award is refused, the Court has no alternative but to pronounce judgment in terms of the award, in these circumstances, the judgment of the Court would be nothing but the award itself and upon the judgment so pronounced, a decree must also follow. It is further clear from the perusal of Section 17 that an appeal from a decree under such circumstances is restricted and it can lie only on the ground that the decree is in excess of, or not otherwise in accordance with, the award. In the present case, the trial court dismissed the defendants' application for setting aside the award and by the same decision it proceeded to pronounce its judgment according to the award. The judgment of the Court was thus nothing but the adoption of the award and the decree was also in accordance with that judgment. Since the preliminary decree was not in excess of, nor there was anything to show that it was not in accordance with the award, the question of filing an appeal against the decree, in terms, did not arise.

Thus although the appellants challenged the correctness of the trial Court's order refusing to set aside the award, they were in effect challenging the award itself which was adopted by the Court as its judgment. According to the definition of the decree as given in the Code of Civil Procedure, it is only a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy of the suit, me decree, in the present case also was a formal expression or the Court's adjudication and that adjudication was nothing, but the award of the arbitrators and that award having been challenged by the appellants, it cannot be said that the judgment or decree of the Court was not challenged. If the order of the Court refusing to set aside the award could not stand in appeal, its judgment and decree which were based thereon could not possibly stand. The decision of the trial Court under appeal thus stood vis-a-vis the preliminary decree in the same basic position as a preliminary decree stands vis-a-vis the final decree. So, if the ratio decidendi of the observations of their Lordships of the Privy Council in AIR 1926 PC 93 is reasonably adopted, we see no reason why the right to file an application for final decree should not accrue from 3rd July, 1961 when the decision of the trial Court merged in that of this Court.

This position would be still more clear by taking a converse case. If the trial Court were to allow the application for setting aside the award and if on appeal under Section 39(1)(vi) of the Arbitration Act its decision were to be set aside, a preliminary decree could follow only thereafter.

18. Learned counsel for the appellants has urged war in interpreting Article 181, the Court should only adopt the strict grammatical construction and it should not be construed in order to enlarge the time on equitable grounds. He has placed his main reliance on Kirpal Shah Sant Singh v. Shri Harkishan, AIR 1957 Punj 273. It may be observed that the learned Judges in that case were considering the provisions of Article 182 of the Indian Limitation Act and not Article 181. In Article 181, the only words which need to be interpreted are 'when the right to apply accrues'. It is doubtful if there can be two interpretations of these words, whether they are construed strictly in grammatical sense, or in a liberal sense. The question of giving them strict grammatical meaning or a liberal construction does not arise so far as this Article is concerned. As regards the point of time when the right to apply under this Article would accrue, it cannot be decided by any text or grammar and it will have to be determined according to the facts and circumstances of each case. What learned counsel for the appellants means to urge in this connection is, that the appeal before this Court arose in a collateral proceeding andso the right to apply for the final decree could not accrue therefrom.

In support of his argument, he has referred to Bhawanipore Banking Corporation Ltd. v. Gouri Shankar, AIR 1950 SC 6 on which reliance was also placed in Kirpal Shah Sant Singh's case, AIR 1957 Punj 273. We have very carefully gone through the judgment of their Lordships of the Supreme Court in Bhawanipore Banking Corporation's case, AIR 1950 SC 6. In that case a preliminary mortgage decree was passed ex parte on 21st August 1940. On 19th September, 1940, the judgment-debtor made an application under Order 9, Rule 13, Civil Procedure Code, for setting aside the ex parte decree, but it was rejected on 7th June, 1941. On 11th July, 1941, the judgment-debtor then filed anotherapplication under Section 35, Bengal Money-lenders Act for reopening the preliminary decree, but it was dismissed for default of appearance on 20th December, 1941. Thereafter, a final mortgage decree was passed in favour of the plaintiff on 22nd December, 1941. The judgment-debtor thenmade an application under Order 9, Rule 9 for the restoration of the proceedings under Section 36, Money-lenders Act. This application was, also dismissed on 1st June, 1942. The judgment-debtor preferred an appeal to the High Court at Calcutta from the decision dismissing his application under Order 9, Rule 9, but it was also dismissed on 3rd July, 1944. On 9th April, 1945, the decree-holder filed an application for executing the decree, but it was dismissed for default on 11th May, 1945. On 2nd June, 1945 he presented another application for execution and the question arose whether it was in time. It is obvious that this application was made more than three years after the date of the finaldecree. The decree-holder tried to rely upon Clause 2 or 3 or Article 182 of the Limitation Act. It was held by theirlordships that Clause 3 could not apply since there was noreview of the decree and that Clause 2 also did not apply because there was no appeal from the final decree.

It was urged before their lordships that the words 'where there has been an appeal were comprehensive enough to include the appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code, made in connection with the proceedings under Section 36, Money-lenders Act. This argument was repelled with the observations that it was highly far-fetched one and that however broadly it may be construed, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution. It is clear from the context in which the said observations were made that the judgment-debtor's application for setting aside the ex parte preliminary decree was dismissed by the trial Court itself and there was no appeal against the final decree either which was passed later on. The judgment-debtor sought to take advantage of the Bengal Money-lenders Act and filed an application under Section 36 thereof. It was thus a completely separate and collateral proceeding.

The application under Order 9, Rule 9 was also made in this collateral proceeding and the appeal also arose out of that order and thus the observations of their lordships were made in a very different state of circumstances. It has already teen pointed out above that in the present case the appeal before this Court was not in a collateral proceeding, out it was against an order of the trial Court which had refused to set aside the award and the validity of the award itself was thus challenged. It was by this very decision of the trial Court that it adopted the award as its judgment and passed a preliminary decree. It is thus the very basis of the trial Court's judgment and decree. If that order of the trial Court were set aside, its judgment and decree would have automatically toppled down. Thus it was a basic and not a collateral proceeding and it would be incorrect to say that it had no direct or immediate connection with the preliminary decree.

19. The view which we have adopted also finds, in our opinion, an indirect support by analogy from the decision of their Lordships of the Privy Council in Chandra Mani Sana v. Anarjan Bibi, AIR 1934 PC 134. In that case their Lordships were considering the provisions of Order 21, Rule 92(1) of the Code of Civil Procedure which runs as follows:--

'Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.'

The executing Court had, under this Rule, confirmed the sale on 21st April, 1924. The appeals filed by certain judgment-debtors against that order were dismissed by the High Court on 17th March, 1927. The question arose whether the period of limitation for an application by the purchaser of the immovable property at an auction-sale for delivery of possession commenced from 22nd April, 1924 when the said was confirmed by the executing Court and it became absolute, or from the date when the appeals of the judgment-debtors were dismissed by the High Court on 17th March, 1927. It was held by their Lordships that

'where there is an appeal from an order of the Judge disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180 until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do when he decided to disallow the application.

Learned counsel for the appellants has drawn our attention to the following observations made by their lordships of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165:--

'The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide.'

It is pointed out by him that this very principle was followed in Kirpal Shah Sant Singh's case, AIR 1957 Punj 273. It may be noted that so far as the principle laid down by their lordships in the said observations is concerned, no exception can be taken to it, but their Lordships have themselves given a caution in several cases that then observations should be understood in the context of the facts and circumstances of the case in which they are made. We may point out that in the said case Nagendra Nath Dey and Pulin Beharj Dey, who were appellants before then Lordships, had obtained final decree on 24th June, 1920. One Madan Mohan, who was a rival decree-holder, had gone in appeal against the said decree and it was dismissed by the Court on 24th August, 1922. On 3rd October, 1923 Nagendra Nath Dey presented an application for execution, It was opposed by some of the judgment-debtors on the ground that it was barred by time under Article 182 of the Indian Limitation Act. This objection was dismissed by the Sub-Judge but allowed by the High Court and so there was an appeal before their lordships of the Privy Council by Nagendra Hath Dey and others. The order of dismissal of the execution application passed by the High Court was sought to be supported on behalf of the judgment-debtors on the ground

'that an appeal in order to save limitation under Clause a of the Article (182) must be one to which the persons affected, i.e. the judgment-debtors, were parties and that it must also be one in which the whole decree was imperilled.'

Adverting to these arguments it was observed by their Lordships that

'the question must be decided upon the plain words of the article: 'where there has been an appeal,' time is to run from the date of the decree of the appellate Court. There is, in their lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say'.

It was further observed by their lordships that

' 'it is at least an intelligible rule that so long as there is any question subjudice between any of the parties those affected-shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court.'

In our opinion, the said observations of their Lordships only support the trend of their observations made in AIR 1924 PC 198 and AIR 1934 PC 134. The said observations are more helpful to the respondents than to the appellants. We find that in Kirpal Shah Sant Singh's case, AIR 1957 Punj 273 the observations made by their lordships in AIR 1926 PC 93 were not considered as that case does not seem to have been referred. The principle which clearly emerges from the decisions of their Lordships in Saiyid Jowad Hussain, AIR 1926 PC 93 and Chandra Mani Sana, AIR 1934 PC 134 Is that if the period of limitation for filing an application is to run from the date of the basic order or a preliminary decree, then that period would run from the date on which the appeal against the said basic order or preliminary decree is decided by the appellate court, we have already discussed above that in the present case the order against which the appeal was filed before this court was a basic order of the same nature as the preliminary decree and, therefore, the right to file an application for final decree should be computed from 3rd July, 1961, on which date the appeals were decided by this Court.

20. In this view of the matter, we need not examine the alternative argument put forward by learned counsel for the respondents about the executability of the decree dated 10th December, 1956. In fact that question could arise only if an application for execution were made by them.

21. In the result, we see no force in this appeal and it is hereby dismissed with costs.


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